Indignation and panic make bad law

Roared on by all three political parties just days before MPs disappeared for their summer holidays, Parliament enacted emergency legislation this month to allow witnesses in sensitive criminal trials to give evidence anonymously.

Ill-conceived, and based on a Bill prepared by Ministry of Justice staffers in a matter of days, the new Criminal Evidence (Witness Anonymity) Act will lead to a lack of clarity and the real possibility of miscarriages of justice.

The Act was rushed through after a Law Lords ruling on June 18 questioned the use of anonymous witnesses - a decision that led to the collapse of a £6m murder trial at the Old Bailey, and, according to the Director of Public Prosecutions, put another 600 trials at risk.

Peter Hennessey, professor of British history at London University, describes the interface between politics and law as a jagged edge: the Law Lords could not have pressed this edge more uncomfortably against the Government’s most sensitive parts for they revived the spectre of gangland killers, previously convicted by anonymous witness testimony, being released to kill again.

The Government, relieved to have got the Bill through, says the new Act will solve the problem of anonymous witnesses and we can enjoy our summer holidays reassured. Don't be so sure.

The Lords had ruled that it was permissible neither under common law, nor Article 6 (right to a fair trial) of the European Convention on Human Rights, to allow testimony from anonymous witnesses that "solely or to a decisive extent" leads to the conviction of a defendant.

Most anonymous testimony can still be heard but what the ruling does prevent are anonymous witnesses who give central, uncorroborated evidence that prosecutions in gangland killings and the like often rely upon. The ruling also catches - and this is what makes up the bulk of the trials cited by the DPP - a number of cases involving undercover officers giving anonymous, uncorroborated evidence in court.

Many will whine about European human rights legislation hobbling British justice but the truth is Article 6(3)(d) is straight out of English common law, and it says that every citizen has the right "to examine or have examined witnesses against him". We're the ones who put it there, presumably because the British drafters were offended by secret, unchallengeable evidence used in some continental European legal systems.

The Lords ruling must be right: you cannot have a fair trial if the main plank of evidence against you comes from a faceless accuser. If you don't know the identities of your accusers it becomes impossible to challenge them fully. Your lawyers can't investigate their backgrounds and therefore properly explore their motives or credibility. If someone bears a grudge, you'll never know. Witnesses, hiding behind anonymity, become impregnable with no incentive not to exaggerate or falsify.

We have an adversarial system and a keystone of it is that the defence can test the evidence against the accused. With anonymous witnesses you can’t even test whether a witness had a good view of the alleged offence or offender because any question that might identify the witness is prohibited, too. As Lord Hewart, Lord Chief Justice in the 1920s and 30s put it, the
defence is reduced to taking "blind shots at a hidden target".

Anonymity also puts a terrible burden on the prosecution which they cannot properly discharge. As in any criminal trial the prosecution, who gather the evidence, must disclose any relevant material that assists the defence’s case or undermines the prosecution case. If a defendant is faced with an anonymous witness, how can he know what is relevant and relay this to the prosecution? He doesn't know the witness's background and therefore whether there is a reason that witness is lying.

Why should defence lawyers have to take the police's word that there is nothing in a witness's background that might induce them to lie? A defendant's lawyers can't conduct the legitimate work of investigating the witness or take steps to examine the circumstances around that testimony. The prosecution is left to do the defence's job with little more to go on than guesswork. That is not how the British system works. It is adversarial not inquisitorial and both prosecution and defence should not only be able to put forward their best possible case but rigorously test the other side.

The fact is, we have got by without anonymous testimony since the Star Chamber Court was abolished in 1641. Serious criminal and terrorist trials have been successfully conducted where the accusers confronted the accused without a problem. You gave evidence and, if necessary, went into the witness protection programme. That was the deal and, as deals go, it wasn't
a great one. It often meant giving up your job, changing your life and moving somewhere you had no ties.

This is a terrible prospect for anyone but even worse for the law-abiding citizen who comes forward. It would certainly make me think twice before going into the witness box. But unpleasantness is not enough of a reason for taking away the long established right of a defendant to challenge their accuser.

Rushing through legislation on a wave of indignation and panic makes bad law, and while this new Act might abolish common law rules, Article 6 still stands because the Government is not seeking to derogate from the European Convention on Human Rights. The Law Lords' ruling made it quite clear that where a conviction was based on uncorroborated, anonymous testimony – as in the case they were adjudicating – it would not meet Article 6 fair trial standards. New Act or not, the door is still wide open for further appeals.

The admissibility of uncorroborated anonymous evidence from undercover police officers raises other issues. Arguably, in light of the Law Lords' ruling, defences should be given the officer's identity so they can explore his or her background thereby negating that officer's ability to continue doing covert work. Appeals are already being heard on this point that, if successful, would give an undercover officer's career the lifespan of a fruit fly.

If there is corroborative evidence - the recording of a drug sale, or an identified witness, for example - then that officer's identity can remain anonymous. Corroborative evidence is a better and more supple way of dealing with witness anonymity.

Trials are funny things and you can never predict how they are going to unwind. During a trial important anonymous testimony (perfectly acceptable under common law and Article 6) can quickly become the decisive or sole evidence against an accused. The prosecution is then left in the unenviable position of forcing the witness to identify himself or discontinuing the prosecution. Trials costing millions could collapse in an instant.

There are many forms of corroborative evidence but one of the most effective is phone tap, which is not only currently inadmissible - it is in fact a criminal offence even to admit its existence. The reason for this is that the security services don’t want people finding out how they snoop on them. This has to change.

Rather than pulling the statute trigger, the Government should have shown faith in the police's ability to put together strong cases that lead to convictions. They can still help to that end by improving witness protection along with the use of corroborative evidence.

Most important, the Government should have more confidence in our system of justice and the rights it protects rather than nudging us towards an inquisitorial system that British jurists through the centuries have found wanting. ·